relevant to f4 (sgp)
singapore takes a tough stance against corruption. the prevention of corruption act (pca) cap 241 is the primary anti-corruption legislation in singapore. the pca provides the corrupt practices investigation bureau (cpib) extensive powers to investigate corruption. the key provisions which create the offence of corruption are found in section 5 and 6 of the pca.
section 5 of the pca states:
‘any person who shall by himself or by or in conjunction with any other person
(a) corruptly solicit or receive, or agree to receive for himself, or for any other person, or
(b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person
any gratification as an inducement to or reward for, or otherwise on account of
(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, or
(ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding five years or to both.’
section 6 of the pca states:
‘if
(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business
(b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business, or
(c) any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal
he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding five years or to both.’
the key elements of corruption are:
(1) giving or acceptance of gratification
(2) as an inducement or reward or on account of the accused doing or forbearing to do something
(3) there was a corrupt element in the transaction, and
(4) the giver or recipient of the gratification had guilty knowledge.
giving or acceptance of gratification
gratification has a very broad definition under section 2 of the pca. there are many kinds of gratification, which include money, properties, promises, services. favours also come in different forms, such as seeking confidential information, leniency, special privileges, contracts.
before a person can be convicted of an offence, the prosecutor is generally required to prove both an actus reus (act) and the mens rea (intent). in the case of corruption, the giving or acceptance of the gratification is the physical criminal act that is the actus reus that has to be proven.
where a person is charged under section 6 of the pca, section 9 clarifies that the actual act of showing favour to the giver of the gratification is not necessary to establish the actus reus of the offence. in addition, section 9 precludes the recipient of the gratification from raising as a defence the fact that the recipient did not have the power to, and did not in fact, show favour to the giver of the gratification in relation to their principal’s affairs. thus, the actus reus of the offence is complete even if the recipient of the gratification has not yet had any opportunity to show favour to the giver of the gratification in relation to the recipient’s principal’s affairs.
inducement or reward was given corruptly
the second element requires there to be a causal link between the gratification and the act the gratification was intended to procure or reward. the third element requires the act to be objectively dishonest.
according to the high court in tey tsun hang v public prosecutor [1] the second and third elements are linked, although they are conceptually different. it was said in that case that the question is whether the recipient received the gratification, believing that it was given to them as a quid pro quo for conferring a dishonest gain or advantage on the giver in relation to their principal’s affairs.
yong pung how cj in chan wing seng v pp [2] explained the meaning of an objective corrupt element. he used the dictionary definition of the word ‘corruption’ as a ‘perversion of a person’s integrity in the performance of (especially official or public) duty or work by bribery, etc’. as dishonesty is an element in the offence of corruption, it is therefore not enough that the purpose of the gratification is to cause the recipient to perform an act of favour towards the giver. the objective corrupt element requires dishonesty to be present.
as such, a distinction should be drawn between a simple gift and a gratification. the former covers the situations where something is received without believing that the giver of the gratification expects a dishonest gain or advantage, or where something is given without expectation of a dishonest gain or advantage. the latter covers the situation where something is received believing that the giver of the gratification expects a dishonest gain or advantage, or something is given with expectation of a dishonest gain or advantage.
the high court in tey tsun hang v public prosecutor [3] gave an example of a waiter receiving a tip as a reward for providing good service to a customer in relation to their employer’s restaurant business. where the practice of tipping is intended to promote good service, the waiter’s receipt of this gratification would be honest. the converse is also true. the person giving the tip is also unlikely to expect a dishonest gain or advantage from the waiter for their service.
giver or recipient had guilty knowledge
the high court in chan wing seng v pp [4] explained the fourth element in the following manner:
‘i should clarify that ‘corrupt intent’ actually refers to whether the accused knew or realised what he did was corrupt by the ordinary and objective standard. this is a subjective test and a more accurate formulation of what this court meant when it stated in pp v khoo yong hak [5] that ‘the giving must be accompanied by a corrupt intent’. thus, guilty knowledge is required.
bearing in mind the aforesaid, it becomes apparent that the giver might have given, thinking and believing that his actions were corrupt, but unbeknown to them, the transaction was perfectly legitimate. likewise, a transaction could have a corrupt element, but there was no guilty knowledge because the giver was operating under a mistaken belief that it was legitimate to give. in both cases, the offence would not be made out.’
section 8 pca provides a presumption to aid the prosecutor in making out the offences under sections 5 and 6 of the pca:
‘where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the government or any department thereof, or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.’
section 8 of the pca applies if:
(1) it is proved that the accused person received the acts of gratification, and
(2) the giver has or seeks to have any dealing with the employer of the accused person, and
(3) the accused person is employed by a ‘public body’ for the purposes of the act.
if section 8 of the pca applies, the presumption is that the recipient of the gratification believed that the other party was expecting to obtain a dishonest gain or advantage or the giver of the gratification expected to obtain a dishonest gain or advantage; and also that the giver or recipient had the guilty knowledge required under the fourth element. the burden shifts to the giver or recipient of the gratification to rebut the presumption – for example, by proving there was an innocent explanation for the transaction.
corruption is a serious offence. it can be seen that the actus reus of the offence is broad in scope. nevertheless, the prosecutor has a heavy burden to discharge in order to prove the mens rea of the offence although, in some situations, the presumption of section 8 of the pca may apply to aid the prosecutor.
references
[1] [2014] 2 slr 1189, [2014] sghc 39
[2] [1997] 1 slr(r) 721
[3] [2014] 2 slr 1189, [2014] sghc 39
[4] [1997] 1 slr(r) 721
[5] [1995] 1 slr(r) 769
written by a member of the f4 examining team